Singh v Cseh[2021] QCATA 54

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Singh borrowed money from Mr Cseh. In June 2017 he borrowed $15,000. Then in November 2017 another $10,000.
2. [2]
   Mr Singh signed written acknowledgements of the loans and agreed to repay the loans by monthly instalments of $500 each commencing 30 July 2017.
3. [3]
   Mr Singh made the monthly payments of $500 until December 2017 but then stopped paying.
4. [4]
   Mr Cseh commenced minor debt proceedings in the Tribunal on 12 April 2019 claiming a balance due of $22,000.
5. [5]
   Mr Singh filed a response to the minor debt claim. He did not dispute the loan but said that Mr Cseh had received rent of $425 per week from a tenant of a residential property owned by Mr Singh to a total of $8,650. Additionally Mr Singh claimed Mr Cseh had sold three “coolers” owned by Mr Singh from Mr Singh’s shop valued at $60,000. In result he denied any indebtedness to Mr Cseh, but rather claimed Mr Cseh owed him $46,650.
6. [6]
   The matter came on for hearing before an Adjudicator on 15 November 2019. Mr Cseh appeared in person and Mr Singh appeared by telephone from Fiji where he practises law as a barrister.
7. [7]
   Mr Singh asked for an adjournment to allow him to bring the tenant to the hearing to support his claims about Mr Cseh having taken rent in reduction of the loan monies. Mr Singh said he had not been able to contact the tenant. The Tribunal tried to contact the tenant by telephone at the hearing but was unsuccessful.
8. [8]
   Mr Singh’s ex-wife attended the hearing, not representing Mr Singh, but with Mr Cseh. She gave evidence refuting the claim by Mr Singh that Mr Cseh had received the benefit of rent from the rental property. Though divorced, it was arranged that she would collect the rent from the tenant given Mr Singh’s absence from Australia. She said that she had paid all the rent either to Mr Singh or as directed by Mr Singh to his son. She said Mr Cseh did not take any rent money.
9. [9]
   She said Mr Cseh was their neighbour and on one occasion when she was unable to collect rent she had asked Mr Cseh to collect it for her. He had done that and then paid it over to her and she had paid it to Mr Singh’s son.
10. [10]
    By the agreement of the parties the matter was adjourned for further hearing to 1.30pm on 18 December 2019 on the basis Mr Singh would bring the tenant to the hearing to give evidence.
11. [11]
    On that return date and time both parties appeared in person. The tenant did not attend. Mr Singh sought yet another adjournment. He claimed he had intended to collect the tenant and bring him to the hearing but had not had time after flying into Australia that morning. The Adjudicator refused his request for a further adjournment and gave judgment in favour of Mr Cseh for the full amount of his claim of $22,000 and the filing fee on the minor debt application of $338.20.
12. [12]
    Mr Singh now seeks leave to appeal that decision.
13. [13]
    Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.^[1] 
14. [14]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.^[2] 
15. [15]
    Mr Singh relies on four grounds of appeal:

    1. (a)
       The tribunal erred in law when it failed to grant sufficient time to the appellant to defend the matters and produce witnesses and thereby caused a miscarriage of justice;
    2. (b)
       The tribunal erred when it allowed an affidavit to be filed by the respondent and considered it without any notice to the appellant or service or right to file a response;
    3. (c)
       The tribunal fixed the hearing date without any proper notice to the appellant when it was aware that the appellant was overseas;
    4. (d)
       The tribunal erred in law and fact when it failed to consider the appellant’s set off or failed to allow him to amend the claim.
16. [16]
    In subsequent written submissions (where he corrected a number of typographical errors in his original grounds of appeal) he purported to add a fifth ground as follows:

    1. (e)
       The tribunal’s failure to allow the affidavit of the respondent and failing to take into account that the applicant was based overseas was something more than just a breach of the rules of natural justice.
17. [17]
    Grounds one to three are conveniently dealt with together.

The first three grounds of appeal

The tribunal erred in law when it failed to grant sufficient time to the appellant to defend the matters and produce witnesses and thereby caused a miscarriage of justice.

The tribunal erred when it allowed an affidavit to be filed by the respondent and considered it without any notice to the appellant or service or right to file a response.

The tribunal fixed the hearing date without any proper notice to the appellant when it was aware that the appellant was overseas.

18. [18]
    There is no substance to any of these complaints.
19. [19]
    In so far as he claims reasonable notice of the first hearing was not given to him because he was overseas, he was personally served with a copy of the application for minor debt at his address at Rochedale identified in the initiating application. That was on 2 September 2019. There is an affidavit attesting to personal service on Mr Singh on the tribunal file.
20. [20]
    Mr Singh filed a response to the minor debt claim on 2 September 2019. By r 36(3) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules):

(3) If an application or referral includes the contact details of a respondent and the respondent does not file a statement of address for service (whether as part of a response or under subrule (1)), the part of the application or referral containing the respondent’s contact details is taken to be the respondent’s statement of address for service.

21. [21]
    Mr Singh failed to advise a different address for service in his response. The Rochedale address was therefore the appropriate address to serve him with notice of hearing, which was forwarded on 19 September 2019 advising him of a hearing on 15 November 2019.
22. [22]
    In the response he claimed that Mr Cseh had had the benefit of rent of $8,650 from a rental property owned by Mr Singh. Additionally Mr Singh claimed that Mr Cseh had taken $60,000 worth of coolers from Mr Singh’s shop.
23. [23]
    As stated, the matter was listed for hearing on 15 November 2019. Mr Singh filed no material before the hearing.
24. [24]
    He applied to appear at the hearing by telephone because he was in Fiji. He mentioned in the application that he would like to adjourn the hearing set for 15 November 2019 to a date after 18 December 2019, or to have a hearing by telephone. He was granted the latter, leave to appear at the hearing by telephone.
25. [25]
    Mr Singh forwarded some photographs to the tribunal. The photographs may have been referable to his missing coolers claim, but there was no accompanying explanation as to their relevance, nor was any explanation about the photographs given by him at the hearing on 15 November 2019. 
26. [26]
    At that hearing, Mr Singh claimed he had two witnesses to give evidence, one dealing with the issue of the coolers and the other being the tenant of the house property who Mr Singh claimed had paid rent to Mr Cseh in agreed reduction of Mr Singh’s indebtedness under the loan to Mr Cseh.
27. [27]
    At that hearing Mr Cseh said he had helped Mr Singh remove things from Mr Singh’s shop, but everything removed had been left under Mr Singh’s house.
28. [28]
    The Adjudicator explained that there could be no counter application in a minor debt action. Any claim Mr Singh had against Mr Cseh concerning the coolers was a matter for Mr Singh to pursue in separate proceedings, appropriately the Magistrates Court.
29. [29]
    In respect of the claim about rent paid by the tenant to Mr Cseh, the tenant was not at the hearing. Mr Singh said he wanted to have the witness attend in person rather than give evidence by telephone. That was why he needed the hearing adjourned. He said:

I need to call the tenant to come and give evidence that Gamor has been collecting money while Subhag has been away, and Subhag has told me that the money Gamor collected was as a part of this debt payment.^[3]

30. [30]
    Mr Singh’s ex-wife, Subhag, also attended the hearing on 15 November 2019. She gave evidence but her evidence supported Mr Cseh’s case, not Mr Singh’s. She provided the tenant’s telephone number to the tribunal after Mr Singh failed to supply it to the Adjudicator. The tenant could not be contacted by telephone however, despite attempts made at the hearing to do so.
31. [31]
    Ms Singh’s evidence was quite clear. Though she was divorced from Mr Singh she collected rent from the tenant aforementioned. She paid that rent either to Mr Singh or to Mr Singh’s son at the former’s direction. Mr Cseh never received any of the rent, she said. She was away one week and asked Mr Cseh to collect the rent for that week, which he did, but he did not keep it; he paid it to her and she sent it to Mr Singh’s son.
32. [32]
    The Adjudicator said she was reluctant to do so but she adjourned the hearing to allow Mr Singh to bring the tenant to the hearing.
33. [33]
    The Adjudicator asked Mr Singh if he would be available if the matter was adjourned to 1.30pm on 18 December 2019. She said this was the only date she had available to hear the matter before the Christmas recess.
34. [34]
    Mr Singh said he would be available for that hearing. He said he had a trial starting in Fiji on 2 December 2019 which would finish on 15 December 2019, and “… then I’m free after that.”^[4]
35. [35]
    The matter came back on for further hearing at 1.30pm on 18 December 2019. Mr Cseh was present, as too Mr Singh, but the tenant was not there. Nor had Mr Singh filed any statements of evidence. Mr Singh claimed he had flown in late from Fiji and had not had time to collect the tenant to bring him to the hearing room.
36. [36]
    The Adjudicator refused a further adjournment sought by Mr Singh. She noted that Mr Singh is a practising barrister in Fiji and she did not accept he was unable to properly prepare for the matter on the return date. She gave judgment in favour of Mr Cseh in the amount claimed plus his filing fee.
37. [37]
    In giving her reasons for decision the Adjudicator noted Ms Singh was unable to attend the adjourned hearing but had sworn an affidavit confirming the evidence given by her at the first hearing.
38. [38]
    As stated, there is no substance to any of Mr Singh’s complaints in these grounds of appeal. He was granted an adjournment by the Adjudicator which the Adjudicator fairly described as an indulgence. The Adjudicator had clearly stated the time and date of the return of the matter to Mr Singh and he had agreed he would be available then. Mr Singh is a practising Barrister. It was his responsibility to have his witnesses available.
39. [39]
    The minor civil dispute jurisdiction concerned was well explained by Alan Wilson J, the former President of the tribunal in The Pot Man Pty Ltd v Reaoch [2011] QCATA 318:

[8] As observed in Breezeway,^[5] QCAT has statutory obligations to deal with matters in ways that are accessible, economical and quick: QCAT Act, s 3(b). The Minor Civil Disputes jurisdiction is, in particular, one in which the Tribunal has a broad jurisdiction to make orders that it considers fair and equitable including, importantly, orders dismissing an application if it considers that course to be appropriate: QCAT Act, s 13(1).

[9] It is common knowledge that the jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own interests. QCAT’s resources for the resolution of disputes serve, as the High Court has recently observed, the public as a whole and not merely the parties to proceedings. The QCAT statutory regime itself places obligations upon parties to take care in their dealings with Tribunal matters and to act in their own best interests.

[10] The legislation, and the demands upon public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences.

40. [40]
    Mr Singh was not shut out of litigating his case as claimed. Rather, he refused to accept the responsibility of arguing his case. His behaviour was more suggestive of delay rather than truly contesting the claim brought against him by Mr Cseh.
41. [41]
    As to his complaint that his ex-wife’s affidavit was considered without any notice to him or allowing him an opportunity to respond, again there is no merit in this assertion.
42. [42]
    There was nothing new in the affidavit filed by Mr Singh’s ex-wife and presented at the final hearing. It merely set out in written form her oral sworn testimony already given by her at the first hearing. Mr Singh cannot claim to have been taken by surprise by anything said in the affidavit. It had already been said at the first hearing. It was his responsibility to prepare and present a case at the adjourned hearing of 18 December 2019 to meet the assertions made at the first hearing. He could have done that but did not.
43. [43]
    Leave to appeal is refused on these grounds of appeal.

The fourth ground of appeal

Tribunal erred in law and fact when it failed to consider the appellant’s set off or failed to allow him to amend the claim.

44. [44]
    Mr Singh raised two potential set offs at the hearing: that associated with the rent and the claim about Mr Cseh taking the coolers.
45. [45]
    This ground of appeal evidently addresses the claimed coolers set off. The submissions made in support of this ground are short. They are as follows:

The appellant filed his set off or counter claim that was not considered by the tribunal as it exceeded the jurisdiction. The appellant applied for leave to amend (sic) was also refused.

The learned referee was more concerned in giving a judgment rather than affording the appellant a fair hearing.

46. [46]
    As explained by the Adjudicator at the first hearing, there can be no counter claim made in minor debt proceedings. A respondent with a counter claim must commence separate proceedings against the applicant.^[6]
47. [47]
    Mr Singh was given a fair hearing. He was granted an adjournment of the first hearing where refusal was well justified. The adjournment was not refused however, and despite the adjournment, Mr Singh failed to have his claimed witness available on the return date, which was the basis for the grant of adjournment at the first hearing.
48. [48]
    As stated by Alan Wilson J in The Pot Man, a party must accept responsibility for preparation and presentation of his case before the tribunal. Where the party concerned is a practising legal practitioner, such as Mr Singh, there can be no excuse where no responsibility is taken.
49. [49]
    This ground of appeal has no prospect of success. Leave to appeal is refused.

The fifth ground of appeal

The tribunal’s failure to allow the affidavit of the respondent and failing to take into account that the applicant was based overseas was something more than just a breach of the rules of natural justice.

50. [50]
    There are no submissions made in support of this ground of appeal. It is unclear what error is claimed to have been made by the Adjudicator.
51. [51]
    This complaint is no true ground of appeal and need not be considered further.

Conclusion

52. [52]
    No identifiable errors having been made by the Adjudicator, leave to appeal is refused.